Legislator: Arrests violated law's intent Says Thomas misinterpreting new measure

Daniel Gonzlez The Arizona Republic Mar. 5, 2006 12:00 AM

The lawmaker who sponsored a new state law aimed at battling migrant smuggling said Friday that Maricopa County Attorney Andrew Thomas violated the measure's intent by sanctioning the arrests of 54 undocumented immigrants.

The intent of the anti-smuggling law, passed last year, was to go after smugglers, not migrants, said state Rep. Jonathan Paton, a Tucson Republican.

His comments came Friday, a day after Maricopa County sheriff's deputies charged 54 undocumented immigrants discovered in furniture trucks with conspiring with their smuggler to enter the country illegally.

It was the first time undocumented immigrants have been arrested with a felony punishable by up to two years in prison under the state's new anti-smuggling law.

An immigration-law expert said the arrests raise significant questions, while Thomas' office said that using the measure was appropriate in arresting undocumented immigrants who use smugglers.

Paton said he's doubtful the law would have passed muster with lawmakers and the governor if they knew it would be used to arrest undocumented immigrants.

"I gave them my word that it was only to go after the smugglers," Paton said. "We probably wouldn't have gotten the votes and the (governor's) signature to get it passed into law."

Paton said he shares Thomas' frustration over illegal immigration in Arizona.

"But it would be better to have a separate law" that charged undocumented immigrants with being in the country illegally "rather than tying them to smuggling," he said.

As written, the anti-smuggling law does not exclude undocumented immigrants, said Barnett Lotstein, Thomas' special assistant deputy attorney.

Lawmakers also have had plenty of time to amend the anti-smuggling measure since Sept. 29 when Thomas announced that, under his interpretation of the law, undocumented immigrants could be charged as co-conspirators.

"This seems to be a lot of buyer's remorse," Lotstein said.

Legal experts said the arrests are unprecedented in the United States and likely will have a difficult time standing up in court.

"The question is not whether the smuggling statute allows him to go after the immigrants but rather whether using the conspiracy statute is within his power," said Evelyn Cruz, director of the Immigration Law and Policy Clinic at Arizona State University.

Cruz said arresting undocumented immigrants as conspirators undermines the anti-smuggling statute.

"It may weaken the ability of prosecutors to go after the smugglers because it scares the witnesses," she said.

Arresting undocumented immigrants under the anti-smuggling law also wastes resources better spent going after smugglers, she said.

"You need to kill the root, not trim the branches," Cruz said.

Deputies didn't arrest any undocumented immigrants under the anti-smuggling law until this week because they were waiting for a good case, Sheriff Joe Arpaio said.

He said charges have been dropped against three of the 54 undocumented immigrants because they lacked evidence. The three were turned over to federal immigration officials.

The other 51 all made incriminating statements that they paid a smuggler up to $2,000 each to enter the country illegally, he said.

Reach the reporter at daniel.gonzalez@arizonarepublic.com or (602) 444-8312.